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A Capehart Scatchard BlogFri, 06 Sep 2019 13:25:35 +0000en-US
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1 https://wordpress.org/?v=5.2.3Handling Scar Injury Cases Effectively In New Jerseyhttps://njworkerscompblog.com/handling-scar-injury-cases-effectively-in-new-jersey/
https://njworkerscompblog.com/handling-scar-injury-cases-effectively-in-new-jersey/#respondFri, 06 Sep 2019 13:19:35 +0000https://njworkerscompblog.com/?p=2238There are a large number of petitions for permanent partial disability benefits filed each year in New Jersey for scars and serious lacerations. It is important for practitioners to understand that injuries due to scars are subject to completely different proofs from all other physical injury claims in New Jersey. The main difference between a […]

]]>There are a large number of petitions for permanent partial
disability benefits filed each year in New Jersey for scars and serious
lacerations. It is important for
practitioners to understand that injuries due to scars are subject to
completely different proofs from all other physical injury claims in New
Jersey.

The main difference between a scar case and every other physical injury case is that there is no requirement for a claimant to prove restriction of bodily function. Even if the scar has absolutely no impact on the function of one’s hand, arm or body part, the petitioner can receive an award. In fact, it is uncommon that a scar injury has an impact on bodily function. The operative test is that a scar injury case must be substantially disfiguring to receive an award. What is or is not substantially disfiguring is in the eye of the beholder. Certainly if one looks at the injury and no scar is visible at all, that injury would not meet the test of substantial disfigurement, and no award would be made. Yet all other kinds of injuries in New Jersey require proof by objective evidence of a restriction of the function of the body or its member organs.

Given that the test is essentially how disfiguring the scar
looks, these kinds of cases may not even need an evaluation by a physician,
although the practice statewide seems to favor getting IMEs. In many instances, it is more helpful to ask
the injured worker to come to court so that the lawyers, and sometimes the
Judge of Compensation, can view the scar if it is on the face, hands or arms. When the location of the scar is more private,
or the claimant is uncomfortable having it viewed in person, a current photograph
can be just as helpful or a description by a doctor in a medical report can
suffice.

When it comes to viewing a scar and determining whether it is disfiguring, a Judge of Compensation, claim adjuster or a lawyer is equally qualified to make the same determination as a physician on whether the scar looks substantially disfiguring. One does not need a medical degree to answer the following: Is it a raised scar? Is it uneven or bumpy? Is it discolored? Does the skin appear to be keloidal in nature? These are observations that anyone can make in assessing whether a scar is substantially disfiguring. In fact, this practitioner has found that many doctors who do IMEs on scar injury cases mistakenly focus on assessing functional loss because they do not realize that in scar cases functional loss is not required under N.J.S.A. 34:15-36.

Because scars take a long time to heal and because collagen
breaks down slowly at the site of the wound, the scar may fade significantly
over a long period time. For this
reason, it is not wise in serious scar injury cases for respondents to rush to
get an IME soon after the injury. Often
scars improve markedly one year or more after the initial injury. It is
often startling to see how different the injury site looks at the time of the
work incident versus how it looks one or two years later.

Practitioners often debate whether a scar should be compensated based on where it is located on the body or whether the injury is more psychological in nature and therefore should be compensated as a partial total injury. For instance, should a very unsightly scar on one’s hand be compensated in terms of the hand (one percent equals 2.45 weeks) or should it be compensated under partial total (one percent equals six weeks)? The answer is that this it depends on whether the petitioner is having psychiatric problems in relation to the appearance of the scar. An IME with a psychiatrist would be necessary to make the argument that the injury should be compensated in whole or in part under partial total with more weeks. The defense, in this instance, would need an IME with its own psychiatrist.

The best advice for employers in handling serious scar cases is not to try to settle the cases early on and to make sure that whenever possible, the defense counsel or court adjuster has an opportunity to view the scar at or near the time of settlement. In a significant percentage of cases, the IME is really unnecessary because, as noted above, the test is simply whether the scar appears to be disfiguring.

]]>https://njworkerscompblog.com/handling-scar-injury-cases-effectively-in-new-jersey/feed/0The Limitations of Settlements in New Jersey Comphttps://njworkerscompblog.com/the-limitations-of-settlements-in-new-jersey-comp/
https://njworkerscompblog.com/the-limitations-of-settlements-in-new-jersey-comp/#respondThu, 29 Aug 2019 13:26:56 +0000https://njworkerscompblog.com/?p=2236This practitioner is often asked two questions regarding workers’ compensation settlements in New Jersey: 1) Can we settle out of court? and 2) Can we get a termination agreement at the time of settlement? There are a number of limitations on settlements in New Jersey that are different from the practice of law in other […]

]]>This practitioner is often asked two questions regarding
workers’ compensation settlements in New Jersey: 1) Can we settle out of court? and 2) Can we
get a termination agreement at the time of settlement?

There are a number of limitations on settlements in New
Jersey that are different from the practice of law in other states. One has to do with the prohibition against
out of court settlements. The employer, third party administrator or carrier
may not reach an agreement with the injured worker to settle a workers’
compensation claim unless that claim is the subject of a claim petition
properly filed and heard before a Judge of Compensation. An injured worker is not even eligible for an
award of permanent partial disability until he or she files a claim petition
through counsel.

Three sections of the New Jersey Workers’ Compensation Act make this clear: N.J.S.A. 34:15-22, 34:15-39, and 34:15-50. In all three sections, as a precondition to settling any claim of workers’ compensation, a claim petition must be filed in the Division of Workers’ Compensation, and only the Judge of Compensation can enter an order approving settlement or one of dismissal.

Another major distinction between New Jersey and other states has to do with waiver of workers’ compensation rights in other agreements. The statutes cited above make clear that the employer may not ask an injured worker to waive rights to workers’ compensation as part of another agreement, such as a separation agreement. There are many laws that can be waived in a valid separation agreement, such as rights under the ADA, FMLA, etc., but workers’ compensation is not one of them. These kinds of waivers are against public policy.

Similarly, it is fairly common in many states that an employer
will get a signed letter of resignation at the time of the workers’
compensation settlement. There are both
practical and legal reasons why this does not happen in New Jersey. First, most injured workers are back to work
doing the very same job by the time the settlement occurs. That is a big practical difference from other
states where workers remain out of work for years even for relatively modest
injuries.

New Jersey is not a wage loss state but rather a functional loss
state. Most of the injured workers in
New Jersey who have formal claim petitions in the Division have already
returned to work long before the settlement, either to their former job or a
new job. In wage loss states like
Pennsylvania, the injured worker may have been out of work for years by the
time the case is settled. In states like
Pennsylvania, the worker who has been away from work for years may agree to
provide a letter of resignation for nominal consideration.

In New Jersey, going back to work – even the same job – does
not detract from the ability of the injured worker to obtain a compensation
award for permanent partial disability.
Injured workers in New Jersey may receive both temporary disability
benefits and an award of permanent partial disability as part of the same case. There is no requirement that an injured
worker prove impairment of working capacity to obtain an award of permanent
partial disability. All the injured
worker must do is prove objective medical evidence of impairment as well as
substantial impairment of major life activities.

Since the vast majority of injured workers are back to work in New Jersey at the time of settlement and doing the very same job as the one they did before their injury, seeking a resignation letter is fraught with legal peril. First, the employee is often an active working unit performing essential job functions. In that situation, there is seldom any legal basis to terminate someone who is doing his or her job satisfactorily. Second, many judges would view an attempt to terminate an injured worker as part of a workers’ compensation settlement as retaliatory or a violation of the New Jersey Law Against Discrimination. If the employee is able to perform the essential functions of the job, termination of employment as part of a settlement of a workers’ compensation claim would likely lead to immediate labor law litigation.

So can an employer ever get a resignation at the time of settlement? It can be done but it must be done through labor counsel, following all the rules that prevail in such agreements in New Jersey. Further, these employment releases are only done when the employee remains out of work for a very long time. The agreement between the parties must be negotiated for separate consideration, and the injured worker will almost certainly need his own labor counsel. There are many laws that such an agreement must cover to be effective, and any employment release must meet state and federal legal requirements.

If the parties do reach an agreement on termination of employment through respective labor counsel, that agreement will not be placed on the record in the New Jersey Division of Workers’ Compensation. Judges will not reference any separation agreement nor determine whether it is fair or just. The employment agreement is executed outside workers’ compensation court with both sides having retained labor counsel to advise them.

]]>https://njworkerscompblog.com/the-limitations-of-settlements-in-new-jersey-comp/feed/0Can A Dependent Settle A Dependency Claim By Section 20 And Then Sue The Uninsured Employer?https://njworkerscompblog.com/can-a-dependent-settle-a-dependency-claim-by-section-20-and-then-sue-the-uninsured-employer/
https://njworkerscompblog.com/can-a-dependent-settle-a-dependency-claim-by-section-20-and-then-sue-the-uninsured-employer/#respondFri, 23 Aug 2019 14:42:27 +0000https://njworkerscompblog.com/?p=2234The case of Kaur v. Garden State Fuels, Inc., A-2135-17T1 (App. Div. April 12, 2019) presents some interesting legal issues. The facts begin with the tragic death of Surinder Singh, who was shot and killed during the course of his employment at Woodbury Gulf LLC. In 2014 Singh’s widow, Kirandeep Kaur, filed a dependency claim […]

]]>The case of Kaur v. Garden State Fuels, Inc., A-2135-17T1 (App. Div. April 12, 2019) presents some interesting legal issues. The facts begin with the tragic death of Surinder Singh, who was shot and killed during the course of his employment at Woodbury Gulf LLC.

In 2014 Singh’s widow, Kirandeep Kaur, filed a dependency
claim petition in workers’ compensation. The gas station was uninsured for
workers’ compensation at the time of her husband’s death. Mr. Goyal and Mr.
Saini were the sole members of the Woodbury Gulf LLC.

In 2015 Kaur sued Woodbury Gulf civilly alleging that the station’s negligence led to the death of her husband. She amended that suit in 2017 to add a claim against Mr. Goyal.

On March 28, 2016, petitioner settled her workers’
compensation dependency claim petition for $150,000. She said that she understood that the Section
20 settlement was final and that she could not return for further workers’
compensation benefits. Petitioner
received mostly deferred payments from the two members of the LLC: $30,000 up front followed by $5,000 each
month for 24 months. The Order recited that
the settlement was not a complete and absolute surrender and release of any and
all rights of petitioner’s dependents under Section 13. This was important because the petitioner and
decedent had two young children.

The Judge of Compensation did not sign the 2016 order but
waited until 2018 when all payments had been made. Counsel reappeared on April 13, 2018, and the
Judge again commented that this Section 20 settlement did not contemplate a
release of decedent’s dependents’ rights.

Meanwhile in her civil law suit, Kaur made some interesting
arguments:

She
argued that she could sue Woodbury civilly because the gas station’s insurance
had lapsed. She contended that this was
akin to an intentional wrong, thereby exempting her from the fundamental rule
that neither an employee nor an employee’s dependents can sue the employer.

She
also argued that payments under a Section 20 are not recognized as workers’
compensation payments for any purpose other than for insurance rating purposes,
so a civil suit should be permitted.

The motion judge ruled for Woodbury LLC and its members, holding that the civil law suit was barred. Kaur appealed. The Appellate Division devoted a good deal of analysis to Section 20 settlements. It said, “A Section 20 settlement bars a subsequent lawsuit against the paying employer as it would be unfair to hold the employer liable for both common law damages and workers’ compensation liability,” citing Hawksby v. DePietro, 165 N.J. 58 (2000).

The Court also seemed to suggest that a Section 20 settlement amounts to an implied acknowledgement that a claimant’s disability is work related, citing the Sperling case for this concept. For these reasons the Appellate Division affirmed the ruling that petitioner and her children could not sue her husband’s employer or the members of the LLC.

As for the failure of Woodbury to maintain insurance for its
own employees, the Court pointed out that this was potentially either a
disorderly person offense or a fourth-degree crime, depending on whether the
actions were willful. Nonetheless, the
Court ruled, “Their failure to maintain
insurance did not alter the effect of the Workers’ Compensation bar, especially
since plaintiff took advantage of the Act’s statutory scheme to obtain benefits
under the Section 20 settlement.”

Importantly, the Court confirmed that consent of the workers’ dependents must be obtained for a Section 20 settlement that purports to waive dependency benefits. In sum, the Court held that the two minor children were entitled to bring a dependency claim of their own against Woodbury Gulf and the members of the LLC. The Court cited the Kibble case for the proposition that “a Section 20 settlement between the employer and a claimant ‘cannot extinguish the rights of those who do not participate, or do not have the opportunity to participate in a settlement.’”

The case is helpful in understanding that it does not really matter whether the workers’ compensation claim is resolved under an order approving settlement with reopener rights or a Section 20: in either case, the claimant and his or her dependent cannot bring a civil action against the employer since the exclusive remedy is workers’ compensation.

]]>https://njworkerscompblog.com/can-a-dependent-settle-a-dependency-claim-by-section-20-and-then-sue-the-uninsured-employer/feed/0Maximizing Defense IMEs in New Jersey Workers’ Compensationhttps://njworkerscompblog.com/maximizing-defense-imes-in-new-jersey-workers-compensation/
https://njworkerscompblog.com/maximizing-defense-imes-in-new-jersey-workers-compensation/#respondFri, 16 Aug 2019 13:38:03 +0000https://njworkerscompblog.com/?p=2233An independent medical examination can be requested at any reasonable time and place in the state for a variety of reasons: there may be an issue of causation, ability to work, second opinion on surgery, need for further treatment, or assessment of permanent partial disability. No matter what the purpose of the examination is, a […]

]]>An independent medical examination can be requested at any
reasonable time and place in the state for a variety of reasons: there may be an
issue of causation, ability to work, second opinion on surgery, need for
further treatment, or assessment of permanent partial disability. No matter what the purpose of the examination
is, a well-reasoned IME is critical to the successful defense of workers’
compensation claims.

This blog focuses on the steps employers, carriers, third
party administrators and lawyers should take as well as the mistakes to avoid
in setting up IMEs.

Explain the nature of
the claim to the IME physician.

Example: Employee
files an occupational claim petition alleging physical labor from 2000 to
January 30, 2019 caused knee pathology. The employer denies the claim petition.
An IME is arranged. There is no
explanation of the allegations of the claim to the IME physician. No letter is
ever sent other than perhaps a check-off letter asking for guidance on “permanency”
and “causation.” The injured worker tells the physician during the IME that on
January 30, 2019 he felt pain in his left knee while walking at work. The
employee has an MRI showing a tear. The doctor writes a report stating, “I find that the petitioner’s accident of
January 30, 2019 caused his knee pathology and I recommend arthroscopic surgery.”

What went wrong? The claim was not for a specific accident! January 30, 2019 was just the last day of
exposure when the pain was noticed or became intolerable. Occupational claim petitions are required to
list a beginning and end date. This
claim asserted that 19 years of physical labor caused the knee pathology, not
walking at work one day (which is not a true accident). The doctor in this case did not know that the
claim was denied, nor that this was truly an occupational claim and that the
worker was never injured on any particular day.

Send the IME
physician key information in the case:

As a general rule, the IME physician wants to read the claim
petition to understand the formal allegations, as well as the answer of the
respondent. The doctor wants to see all treating records including prior
records that may be relevant. If there
are answers to interrogatories, the doctor will want to see them as well
because they often contain important information. If there is a recent and subsequent injury,
whether work or non-work related, the IME doctor will want that information.

If you have a
specific doctor or type of specialty you need for an IME, don’t call an IME
group and ask for the next available IME date without mentioning the particular
physician or specialty.

IME companies have dozens of physicians that they schedule for IMEs. Some are surgeons; some are not. If you want the earliest possible date, the company will find the physician whose calendar is open and assign you that doctor. That may or may not be the doctor or specialty you wanted. Some physicians are very busy and booked out for three months; others have fewer assignments. If you just want any orthopedic surgeon as soon as possible, but you do not want an occupational physician or physiatrist, then make that clear.

Make sure you have
all the relevant records –including records of prior and subsequent accidents –
before setting up the IME.

We all want cases to move quickly. The average New Jersey claim petition lasts
28 months, so understandably clients are concerned about moving files. However, rushing an IME is generally a
mistake. The absence of critical records
often costs the employer a great deal of money. The IME doctor can only give an opinion on
the records he or she has. There may be
prior records that will show that the condition at issue was already in
existence a few months before the accident, or that there has been a subsequent
non-work car accident which has significantly aggravated the work-related
condition. The process of getting
medical records takes time. It takes
time to prepare and send HIPAAs to opposing counsel, who then send them to
their clients to be returned to respondent counsel. Hospitals often delay sending records. The hospital may reject the medical
authorization and demand a subpoena. But
getting the prior or subsequent medical records may help clarify whether the
claim is even work related, thereby avoiding costs of surgery and a large
permanency award, with a potential reopener down the line. This practitioner has seen cases where the
doctor is missing almost all the treating records and writes a report basically
drawing no conclusions pending receipt of medical records. That creates a need for a second IME with
double the cost.

When a case has high
exposure or is likely to be tried, retain the most qualified expert.

Yes, it costs more to retain a board certified expert with a sub-specialty. But there are many high exposure cases in workers’ compensation, and the cost of not retaining a specialized expert is far greater than the extra $1,000 you may pay for a medical report from a highly qualified expert. When you have a case involving lung cancer, you should retain a board certified oncologist or pulmonologist. There are many internists who do such examinations but they may not have sat for or passed the board certification in pulmonology. The outcome of a case often depends on the credibility of competing experts. Judges always assess credibility of medical experts; they review their training and qualifications, and they consider the expertise of the IME physician when the experts flatly disagree on an issue in the case. This advice is also true in orthopedic cases. If the case involves an issue of whether a fusion surgery should be performed, respondent is far better off retaining an expert who performs fusions, rather than an expert who does not perform such surgery.

Find out early on if
a translator is needed.

There are few things in workers’ compensation more
frustrating than cancellation of an IME because the employee could not converse
with the IME physician. Contact must be
made early on with petitioner’s attorney to inquire whether the injured worker
will need a translator and if so, what specific language will be needed.

Try to make a reminder call or send an email to petitioner’s attorney a few days before the IME.

This is not always possible to do, since everyone is so busy, but it pays off. Many times a letter is sent to a petitioner’s attorney two or three months before the exam date. When an exam is set up months in advance, there is a higher likelihood of a missed appointment. Communications fall apart or injured workers forget about the exam date. If possible, a follow-up call or email to counsel a few days before the exam may eliminate a potential missed appointment.

]]>https://njworkerscompblog.com/maximizing-defense-imes-in-new-jersey-workers-compensation/feed/0Counsel Fees in Dependent Spouse Claims May Be Based On The Life Expectancy Of The Dependent Spouse, Not 450 Weekshttps://njworkerscompblog.com/counsel-fees-in-dependent-spouse-claims-may-be-based-on-the-life-expectancy-of-the-dependent-spouse-not-450-weeks/
https://njworkerscompblog.com/counsel-fees-in-dependent-spouse-claims-may-be-based-on-the-life-expectancy-of-the-dependent-spouse-not-450-weeks/#respondWed, 07 Aug 2019 17:38:52 +0000https://njworkerscompblog.com/?p=2231In an important reported decision, and one of first impression at the Appellate level, the Court in Collas v. Raritan River Garage, A-3103-17T4, (App. Div. July 19, 2019), held that the Judge of Compensation was correct in basing the counsel fee of petitioner on petitioner’s life expectancy, not limited to 450 weeks, as has been […]

]]>In an important reported decision, and one of first impression at the Appellate level, the Court in Collas v. Raritan River Garage, A-3103-17T4, (App. Div. July 19, 2019), held that the Judge of Compensation was correct in basing the counsel fee of petitioner on petitioner’s life expectancy, not limited to 450 weeks, as has been the practice in the New Jersey Division.

For many decades, judges of compensation have awarded counsel fees in dependency cases on a 450-week period, even though dependent spouses receive benefits until their death, unless they should remarry. Counsel in Collas argued that basing the fee on the life expectancy of the dependent spouse makes more sense. The Judge of Compensation reviewed two places in the statute where 450 weeks is referenced. First N.J.S.A. 34:15-12(b) provides in total disability claims that compensation shall be for a period of 450 weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission, and can show that because of such disability it is impossible for the employee to obtain wages or earnings equal to those earned at the time of the accident.” Otherwise the statute makes clear that total disability benefits continue beyond 450 weeks.

The other statute that discusses 450 weeks appears in N.J.S.A. 34:15-13 pertaining to dependency claims. That section states that “This compensation shall be paid, in the case of the surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry and, in the case of other dependents, during 450 weeks …If a surviving spouse remarries before the total compensation is paid, he or she is entitled to a payment of 100 times the amount of the weekly compensation immediately preceding the remarriage, whichever is lesser. The statute makes clear that a dependent child may receive dependency benefits throughout attendance at a full-time college or university but no later than age 23. The so-called marriage penalty does not apply to the surviving spouse of a deceased member of the state police or member of a fire or police department or force who died in the line of duty.

Raritan River Garage argued that it has always been the accepted practice in the Division to base the counsel fee of the prevailing dependent on a 450-week period. Further, Garage argued that it is speculation to pay a counsel fee on an amount of years beyond 450 weeks because the spouse may remarry or die. The Judge of Compensation disagreed and asked the following rhetorical question: “Is a previously legislatively mandated 450-week period less speculative in terms of calculating [Collas’] true award than the life expectancy tables published in the court rules?”

The Appellate Division agreed that using life expectancy tables is no more speculative than using a 450-week period. The Court also observed that there is no link in Section 13 governing dependency awards to the section of the statute governing counsel fees in N.J.S.A. 34:15-64. That section authorizes the Judge of Compensation to award a counsel fee to a successful petitioner’s attorney “not exceeding twenty percent of the judgment.”

The Appellate Division also noted that the 450-week period does not distinguish whether a surviving spouse is 20 years old or 60 years old. In this case, Ms. Collas had a life expectancy of 12.7 years. The Court did not hold that the life expectancy calculation must always be used. “We determine only that the use of the table method was a reasonable option utilized by the judge. We recognize that using the table method will, in many cases, increase the potential size of a fee award. We thus caution against a reflexive application of a twenty-percent award without full analysis.”

Attorney Rick Rubenstein, who argued this case successfully in the Appellate Division, was interviewed following this decision. He addressed two issues that many practitioners are now considering in light of the Collas decision. One is whether acceleration of one-third payments when there is a very large third party recovery in a dependency case should also be based on the life expectancy of the dependent spouse. Mr. Rubenstein said that he believes that the logic of Collas would extend to this situation. He noted that payments of one third to a dependent where there is a large third party recovery are not technically payments of compensation but rather contribution to counsel fees. If the counsel fee to a dependent spouse is based on the life expectancy of the dependent, the argument would be that the return of the counsel fee to the dependent spouse would be analyzed in the same manner.

The other issue which Mr. Rubenstein addressed is whether the rule in Collas may be applied by future courts to total disability claims. He said it is possible but less likely than the decision in Collas. “Courts will likely see a distinction between the marriage penalty in Section 13, and the re-employment offset in Section 12, both on practical grounds and public policy grounds. There is no public policy promoting remarriage, or marriage, for that matter. There IS a public policy favoring rehabilitation and re-employment. That public policy is reflected in the base period of 450 weeks absent from the dependency statute, and also reflected in the “contingent” nature of 12(b) benefits. 12(b) is contingent upon no active income, qualification upon examination, and lack of rehabilitation which is an ‘aim’ of the Act.”

This decision is certainly a significant one for practitioners and will require employers, carriers and third party administrators to amend the traditional calculation of reserves for counsel fees in dependency cases.

]]>https://njworkerscompblog.com/counsel-fees-in-dependent-spouse-claims-may-be-based-on-the-life-expectancy-of-the-dependent-spouse-not-450-weeks/feed/0United Airlines Wins Important Appellate Decision Involving Jurisdictionhttps://njworkerscompblog.com/united-airlines-wins-important-appellate-decision-involving-jurisdiction/
https://njworkerscompblog.com/united-airlines-wins-important-appellate-decision-involving-jurisdiction/#respondWed, 31 Jul 2019 13:51:51 +0000https://njworkerscompblog.com/?p=2229There are precious few reported decisions dealing with the jurisdictional requirements for bringing a claim petition in New Jersey when a New Jersey resident is employed out of state, is injured working out of state and is hired out of state. In the reported case of Marconi v. United Airlines, A-0110-18T4 (App. Div. July 22, […]

]]>There are precious few reported decisions dealing with the jurisdictional requirements for bringing a claim petition in New Jersey when a New Jersey resident is employed out of state, is injured working out of state and is hired out of state. In the reported case of Marconi v. United Airlines, A-0110-18T4 (App. Div. July 22, 2019), the Appellate Division affirmed the dismissal of two claims against United Airlines for lack of jurisdiction in just this situation. The case was successfully handled at both the division and appellate levels by Prudence Higbee, Esq., a partner with Capehart Scatchard.

The facts in the case were not disputed. Richard Marconi lived in New Jersey and
suffered a work injury to his left hip on January 31, 2015 working for United
Airlines in Philadelphia. United paid
full benefits to Marconi under Pennsylvania law, but eventually Marconi brought
two claim petitions in New Jersey seeking permanency benefits that were not
available in Pennsylvania. One claim
petition was for the accident in 2015 and the other was an occupational claim
alleging work exposures from 1988 to the present. Mr. Marconi admitted he was not hired in New
Jersey and worked most of his career in Philadelphia with only a brief period
of employment at Dulles Airport.

United moved to dismiss both claim petitions for lack of jurisdiction in New Jersey. Marconi tried to build up his contacts with New Jersey as much as he could. He argued that his supervisor reported to a United employee at Newark’s Liberty International Airport. Marconi also contended that he himself would telephone United staff at Liberty International Airport once every couple of months for technical advice. He received training all over the world, including in Newark. He would fly from Newark whenever United assigned him to do “field service.” Marconi’s supervisor sometimes would drive to Liberty International Airport to retrieve parts there. United argued that these contacts with New Jersey were truly minimal.

The Judge of Compensation reviewed Professor Larson’s
treatise on grounds for jurisdiction:

Place where the injury occurred;

Place of making the contract;

Place where the employment relation exists or is
carried out;

Place where the industry is localized;

Place where the employee resides; or

Place whose statute the parties expressly
adopted by contract.

The Judge of Compensation dismissed both claims, finding
that residence in New Jersey alone has never been sufficient for jurisdiction.
The Appellate Division emphatically agreed: “We conclude that residency alone is an insufficient basis to confer
jurisdiction on the Division for extra-territorial workplace injuries.”

Petitioner argued on appeal that even if residency alone was insufficient, the fourth factor, namely “place where the industry is localized,” should have been sufficient for jurisdiction in conjunction with petitioner’s residency in New Jersey. There are only one or two published cases that have ever discussed the concept of “localization” of an industry, and Marconi provides the most complete analysis to date, citing cases from around the nation on this concept.

First the Court said that “in no state workers’ compensation
scheme was localization alone sufficient to confer jurisdiction.” Professor Larson explained the rationale for
localization of an industry as a criterion for jurisdiction: “The
state in which the employer’s business is localized has a relevant interest in
a compensable injury . . . since the obligation side of the compensation
relation is as much a part of that relation as the benefit side, and since the
burden of payment would ordinarily fall most directly on the employer and
community where the industry is centered.” The Court seemed to accept
Marconi’s argument that New Jersey was a place where United’s industry was
localized, but it still rejected jurisdiction.
That was the most interesting aspect of the case.

The Appellate Division in Marconi analyzed the concept of localization in terms of advancement of company interests. “It is the nature and frequency of the employee’s relationship with the localized presence of the employer that lends weight to the fourth Larson factor. In other words, in this case, did Marconi’s ‘duties to a substantial extent . . . implement the localized business’ of United in New Jersey?” (citations omitted). The Court answered its own question in the negative. “Essentially, nothing in the course of Marconi’s two-decade employment with United advanced the company’s localized interests in New Jersey. In these circumstances, although United maintained a localized business interest in Newark, New Jersey has no substantial interest in exercising its jurisdiction over the petitions.”

The Court explained that Marconi’s contacts with Liberty
International were mainly to advance Marconi’s ability to perform his work in
Philadelphia. “Even when Marconi used United’s facilities at Liberty International
Airport, it was to serve United’s interest elsewhere around the country.”

After disposing of the traumatic claim petition for lack of jurisdiction, the Court then dealt briefly with the occupational claim petition, reminding practitioners that there is a different standard for jurisdiction in occupational claims from traumatic claims. The Court cited Williams v. Port Authority of New York & New Jersey, 175 N.J. 82 (2003) to make this point clear: “The petitioner must demonstrate either that (1) there was a period of work exposure in this State that was not insubstantial under the totality of circumstances and given the nature of the injury; (2) the period of exposure was not substantial but the materials were highly toxic; or (3) the disease for which compensation is sought was obvious or disclosed ‘by medical examination, work incapacity, or manifest loss of physical function’ while working in New Jersey.” Obviously petitioner could not meet this test because there was no work exposure in New Jersey.

In the opinion of this practitioner, the Marconi decision provides the most thorough analysis to date of the fourth criterion cited by Professor Larson in his treatise, namely “localization of business.” The Court flatly concludes that “localization of business” alone is insufficient for New Jersey jurisdiction. The implications of this statement are significant because there are hundreds of cases pending in New Jersey now involving medical claim petitions where the injured worker lives in New York, is hired in New York, and works in New York. The only connection to New Jersey in many of these claims is that a medical procedure occurred in New Jersey. Medical providers have filed countless claims of this nature seeking jurisdiction in New Jersey to argue that the New York fee schedule should not apply and ultimately seeking the right to additional reimbursements. The Appellate Division has yet to weigh in on these cases. When one of these MCP cases finally reaches the Appellate Division, one can expect that the analysis in Marconi will certainly be considered.

]]>https://njworkerscompblog.com/united-airlines-wins-important-appellate-decision-involving-jurisdiction/feed/0Governor Signs New Public Safety Workers’ Compensation Laws Which Will Pose Fiscal And Legal Challenges for New Jersey Public Entitieshttps://njworkerscompblog.com/governor-signs-new-public-safety-workers-compensation-laws-which-will-pose-fiscal-and-legal-challenges-for-new-jersey-public-entities/
https://njworkerscompblog.com/governor-signs-new-public-safety-workers-compensation-laws-which-will-pose-fiscal-and-legal-challenges-for-new-jersey-public-entities/#respondMon, 22 Jul 2019 14:57:21 +0000https://njworkerscompblog.com/?p=2223On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees. There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.” The single most onerous provision […]

]]>On July 8, 2019, Governor Phil Murphy signed Senate No. 716
into law, a bill which makes sweeping changes to occupational disease claims
for New Jersey public safety employees.
There are many aspects of the new law, known as the “Thomas P.
Canzanella Twenty First Century First Responders Protection Act.” The single most onerous provision in the bill
for municipalities, counties and the State is the provision covering firefighters
for a wide range of cancers that will now be presumed to be compensable.

With respect to firefighters, both paid and unpaid, the bill
provides that firefighters under the age of 76 will be presumed to have work
related occupational disease if the firefighter develops cancer, including
leukemia, so long as the firefighter has completed more than seven years of
service. The presumption means that if
such a firefighter is diagnosed with cancer, the Judge of Compensation must
presume that the cancer is work related.
There is no need for a firefighter with more than seven years of active
service under age 76 to identify specific exposures or fires that he or she
fought. The burden of proof does not
rest on the firefighter to prove his or her case. Rather, the employer will lose unless the
employer can disprove the case by a preponderance of the evidence. To defeat the presumption created by this
law, the employer has to prove that there is a greater than 50% chance that the
cancer is not due to work exposure.

For a firefighter 75 years of age or under with seven years
of service, the firefighter can seek workers’ compensation benefits for any
type of cancer, even the most common cancers.
The only limitation is that the
cancer must be a type which may be caused by exposure to heat, radiation, or a
known or suspected carcinogen as defined by the International Agency for
Research on Cancer. That
organization is part of the World Health Organization.

The problem for public employers in disproving a presumed
cancer claim is that there are any number of contradictory and competing studies
in the medical literature with respect to firefighting and cancer. Some articles say there is no link between
firefighting and common cancers like prostate cancer and colon cancer, but
others make the connection. Prostate
cancer is the most common cancer in men, and the incidence climbs with
age. There is more of a scientific consensus
linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant
melanoma, leukemia and non-hodgkins lymphoma.

A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers. That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer. This section of the law specifically covers damage to reproductive organs. Again, there is a presumption of compensability, so the burden of proof shifts to the employer. But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances. In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers. However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.

Public safety workers are defined as follows:

Member, employee or officer of a paid, part paid or volunteer fire or police department;

State police member

Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;

Member of certain correctional facilities;

Advanced medical technicians of a first aid or rescue squad;

Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.

Public safety workers who contract a serious communicable
disease or related illness also shall have a presumption of compensability that
the injury or illness is work related and compensable. The new law protects public safety workers
who are exposed to secretions, blood or other bodily fluids of one or more
other individuals as well as those who are exposed to any pathogen or biological
toxin used in biological warfare or prevalent in epidemics.

The new law also applies to public safety workers who are
injured or become ill while administering a vaccine including smallpox, or as
part of an inoculation program in the workforce. Once again there is a presumption of compensability,
but the employer can prevail if the employer can show by a preponderance of evidence that there is no
link between the medical condition and work exposures.

In all of these new provisions, there is interesting
language stating as follows: “The employer may require the worker to
undergo, at the expense of the employer, reasonable testing, evaluation and
monitoring of health conditions of the worker which is relevant to determining
. . . whether the occupational disease
arose from the employment.” This
language seems to suggest that when the employer is presented with such a
claim, the employer can then test and evaluate the worker going forward. It is not clear if this means that an
employer can test existing employees who have not brought claims.

Here are a number of
questions that clients are already asking:

Question: What can a public entity do to make sure that
a public safety job applicant does not have a covered cancer when hired?

Answer: Public employers are strongly encouraged to
perform post-offer medical examinations of public safety job applicants using a
detailed questionnaire regarding medical conditions that the employee may
already have. Readers can consult with
the undersigned for advice on this questionnaire.

Question: How will employers know if public safety
workers could have exposures to known carcinogens, cancer-causing radiation or
a radioactive substance?

Answer: The new
law requires public employers to maintain records regarding any instance in
which any public safety worker is deployed to a facility or location where the
presence of one or more substances which are known carcinogens is indicated in
documents provided to local fire or police departments and where fire, explosions, spills or other
events occurred which could result in exposure to those carcinogens. The law requires that the records must
include the identity of each deployed
public safety worker, and it requires that each worker must be provided
notice of the records. This requirement
also pertains to firefighters.

Question: What if the firefighter or public safety
worker wears respiratory protection when attending a fire, spill or explosion? Does the employer still have to document all
such workers?

Answer: This law
makes no mention of documenting use of respiratory protection, but it will
obviously be advisable to employers to include this information in
documentation. Whether or not the public
safety worker used respiratory protection, the new law requires the employer to
document every public safety worker who appears at a fire, spill or explosion
or other potentially hazardous event.

Question: Will DNA testing be allowed to determine
whether a worker carries a certain cancer gene?

Answer: There is no discussion of the use of DNA
testing, but this is an issue that will likely be addressed by the courts.

Question: Is the provision relating to firefighters
limited to existing and active employees?

Answer: No, firefighters age 75 or younger are
protected so long as they have not been out of active service for more than 20
years. This means that employers will
be getting claim petitions for cancer-related conditions from firefighters who
have long departed from active service.
Employers should therefore retain records of exposures for decades.

Question: What impact will these new occupational
disease laws have on our workers’ compensation programs?

Answer: The Office of Legislative Services estimates
that the bill will most likely increase annual expenditures by State and local
public entities that utilize public safety workers. The Office has no idea how much the increase
will be. In this practitioner’s opinion,
there will be substantial increased costs on public entities for medical, temporary
disability and permanency benefits as well as defense costs and the cost of
oncologists and other defense experts.
More trials are likely because presumptions tilt the scales in the favor
of workers.

Question: Does this new law apply to public safety
workers and firefighters who have already retired?

Answer: This law is effective immediately, and the law does seem to apply to those who have already retired. There is no language restricting this law to existing employees of public entities. There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.

Question: How are public entities supposed to defend
cancer claims of this nature?

Answer: Presumptions are very hard to overcome for
employers. It will help that the
employer has to disprove the claim by a preponderance of the evidence, as
opposed to the initial draft of the law which required proof by clear and
convincing evidence. Since cancer cases
are going to be the main focus of the new bill, and since these claims will
always involve high exposure, employers will need to retain lawyers and
oncologists who specialize in complex occupational disease claims. Aggressive discovery not seen in ordinary
workers’ compensation claims will now be paramount with special interrogatories
almost certainly needed given the inadequacy of form occupational disease
interrogatories.

Answer: Retaining board certified internists will not
likely be sufficient to overcome a presumption of compensability since these
cases will center on highly technical epidemiological studies done in many
countries on cancer risks in firefighters and public safety workers. There will be a great deal of discussion of
current thought by the International Agency for Research on Cancer. The cases will also center on the reliability
of certain medical journals and studies, and oncologists are more familiar with
these issues than other physicians.
Although board certified oncologists will be more expensive to retain,
employers will need experts with impeccable credentials in order to overcome
the statutory presumption of compensability.

Question: Does this law eliminate the statute of
limitations on occupational disease claims?

Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.

Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.

]]>https://njworkerscompblog.com/governor-signs-new-public-safety-workers-compensation-laws-which-will-pose-fiscal-and-legal-challenges-for-new-jersey-public-entities/feed/0Stacking Injuries to Multiple Body Parts Resulting From The Same Accident and The Impact on Reopeners and New Accidentshttps://njworkerscompblog.com/stacking-injuries-to-multiple-body-parts-resulting-from-the-same-accident-and-the-impact-on-reopeners-and-new-accidents/
https://njworkerscompblog.com/stacking-injuries-to-multiple-body-parts-resulting-from-the-same-accident-and-the-impact-on-reopeners-and-new-accidents/#respondThu, 11 Jul 2019 19:44:12 +0000https://njworkerscompblog.com/?p=2220In 1979, the New Jersey Legislature made sweeping changes to the Workers’ Compensation Act. Among those was the creation of a sliding scale on the Schedule of Disabilities found in N.J.S.A. 34:15-12c. The legislative intent was to award greater compensation to the more seriously injured worker. To accomplish this intent, the pertinent language in Section […]

]]>In 1979, the New
Jersey Legislature made sweeping changes to the Workers’ Compensation Act. Among those was the creation of a sliding scale
on the Schedule of Disabilities found in N.J.S.A. 34:15-12c. The legislative intent was to award greater
compensation to the more seriously injured worker. To accomplish this intent, the pertinent
language in Section 12c says: “When a
claim petition alleges more than one disability, the number of weeks in the
award shall be determined and entered separately for each such disability and
the number of weeks for each disability shall be cumulative when entering the
award.”

Initially judges of compensation as well as appellant panels had mixed interpretations of the above section. The issue was resolved in 1984 with the New Jersey Supreme Court decision in Poswiatowski v. Standard Chlorine ChemicalCo., 96 N.J. 321 (1984). Poswiatowski was actually a consolidation of three cases and the other two are: Fagan v. City of Atlantic City and Smith v. United States Pipe and Foundry Company.

In Poswiatowski,
the petitioner fell in 1981 fracturing his back and left foot and received an
award of 20% permanent partial disability for the back, 40% of the foot and 10%
permanent partial disability for the neuropsychiatric component. The trial court, believing that the award
should be entered separately, gave $6,924 (120 weeks @ $59) for the back, $4,328
(92 weeks @ $47.04) for the foot and $2,820 (60 weeks @ $47) neuropsychiatric
for a total of $13,172. Petitioner
argued that the total of the weeks should dictate the rate, and he should have
been awarded 272 weeks at 50% SAWW (State Average Weekly Wage) or $33,456. The Appellate Division affirmed and the
Supreme Court granted certification.

In the Fagan case, the petitioner, a public health nurse, was assaulted and robbed during the course of her employment. She suffered a concussion, fractured nose, facial scarring, sinus disorders, headaches, facial numbness and recurring nightmares. The compensation court awarded her 7 ½% permanent partial disability (45 weeks) for the fractured nose, 7 ½% permanent partial disability (45 weeks) for severe contusions of the scalp, lips and mouth with numbness, and 15% permanent partial disability (90 weeks) for the post traumatic nightmares. That totaled 180 weeks (30% permanent partial disability) at an average rate of $57.30 or $10,314. The Appellate Division reversed and modified the award to $8,460. ($2,115 nose + $2,115 contusions and numbness of face plus $4,230 nightmares). Again, the Supreme Court granted certification.

In Smith,
petitioner received a significant crush injury to his right forearm resulting
in numerous surgeries for vascular, orthopedic and cosmetic injuries together
with skin grafts from petitioner’s abdomen and right thigh. The compensation court awarded 23% permanent
partial disability (138 weeks @ $66) for the combination of the right hand and
right leg (apportioned 50% of the hand and 5% of the leg), 10% permanent
partial disability (60 weeks @ $47) for the cosmetic scarring of the abdomen
and 12 ½% permanent partial disability (75 weeks @ 47) for neuropsychiatric residuals
for a total of $15,468. Petitioner
argued that he was entitled to 273 weeks at 50% SAWW or $33,759. The Appellate Division agreed with petitioner,
finding that the compensation court’s interpretation was “inconsistent with the
purposes of the 1980 amendments.”

The Supreme Court
stated “(W)e believe that the Smith case best illustrates the method
most consistent with statutory purpose.” The court added, “We hold that the
weeks of compensation awarded for one accident’s multiple injuries that
establish a single compensable disability should be cumulated, not
separated, in computing the award.”

The Supreme Court went on to explain, “(O)f course, if the compensation judge uses the schedule as an aid in determining the extent of the award, such may be regarded as a reasonable finding if expressed in terms of permanent partial disability. Orlando v. F. Ferguson & Son, supra, 90 N.J.L. at 553, 102 A. 155. But the point of the Smith panel is to focus on the nature of the injury. The method of calculating permanent partial disability to two or more major body members under N.J.S.A. 34:15-12(c)(20), -12(c)(22), has not been affected by the 1980 amendments. The compensation court is not to determine the scheduled number of weeks for each injury separately; rather, it is to look at the effect of the injuries and to make a reasonable assessment of the extent of the combined disability in terms of a percentage of permanent and total disability. This requires the court to make a judgment about the extent of impairment resulting from the combined injuries without being limited by the statutory schedules. See Cooper v. Cities Serv. Oil Co., supra, 137 N.J.L. at 182, 59 A.2d 268; Orlando v. F. Ferguson & Son, supra, 90 N.J.L. at 557, 102 A. 155; Vishney v. Empire Steel & Iron Co., supra, 87 N.J.L. at 483-84, 95 A. 143.”

In further support the Court said: “(B)ut under the new schedule of benefits set forth in N.J.S.A. 34:15-12(c), the difference is of great significance. If the weeks due the injuries are added together when entering an award, more money is awarded. By the 1979 amendments, L. 1979, c. 283, § 5, the Legislature not only increased the weekly rate for permanent disability from a maximum of $40 to a maximum of 75% of statewide average weekly wage (SAWW), but also created a sliding scale of weekly dollar payments ranging from $47 where the adjudicated disability requires payment for 90 weeks or less, up to $82 for the last six weeks of disability for which 180 weeks of payments are required. Over 180 weeks of entitlement, there is a dramatic increase in weekly dollars payable. From 181 up to 600 weeks, disability is compensated from a low of 35% of SAWW (for disabilities drawing entitlement of from 181 to 210 weeks), to a maximum of 75% of SAWW (for disabilities falling within the 421- to 600-weeks bracket.)1See**1259Gothelf v. Oak Point Dairies of N.J., 184 N.J.Super. 274, 445 A.2d 1170 (App.Div.1982).”

Based on this logic, the Supreme Court reversed the appellate division decisions in Poswiatowski and Fagan and affirmed the decision of the appellate division in Smith.

Now let’s consider how stacking affects reopener claims and new accidents. Where an injury results in an award encompassing more than one body part, and the petitioner seeks to reopen that award under N.J.S.A. 34:15-27 for review and/or modification of the prior award, the petitioner need not allege an increase in disability to all affected body parts. Since the original award set the overall disability for the accident, an increase of disability to one part is added to the overall award. In effect, the prior award becomes the base.

For example, let us assume that petitioner receives an award for injury occurring in 2017 to his or her lumbar spine and left shoulder. The award is for 35% permanent partial disability apportioned 20% to the low back and 15% to the left shoulder (210 weeks x $418 = $85,260 assuming wages sufficient for maximum rates in 2017). In 2019 petitioner files an application for review and/or modification alleging an increase in disability to the left shoulder. The judge of compensation finds an increase in disability of 7 ½% of the left shoulder, taking into consideration the overall disability to the petitioner in 2019. The overall award must be increased to 42½% permanent partial disability apportioned 20% (unchanged) to the low back and 22 1/2% of the left shoulder. Because it is an extension of the original award, the award must be paid at the rates in effect for the year of the accident, which is 2017. (255 weeks x $522 = $133,110 less credit for the prior award of $85,260) The award calculation is made by going back to the beginning of the original award and changing the rate to $522 and paying the accrued weeks at the increased rate of $104 per week and the balance of the non-accrued weeks at the full $522.

In contrast to the example above, stacking does not occur with a new accident to one of several previously awarded body parts. Suppose our petitioner above received the original award of 35% permanent partial disability and then had a new accident in 2019 causing increased disability to the left shoulder only. The Judge of Compensation finds an overall disability to the left shoulder to be 22 1/2% permanent partial disability. That is 7.5% higher than the prior shoulder apportionment of 15%, but the new award is only based on the shoulder, not the low back. In effect, the shoulder can be separated from the previously stacked award. So the new award would be 22 ½ % permanent partial disability for the left shoulder minus a credit of 15 % preexisting with no mention of the back at all. The new award would equal 135 weeks x $271.33 or $36,630 credit $22,140 (15% @ the 2019 rate) or $14,490. Obviously, if the new award had been stacked on the prior back/shoulder award, it would have resulted in a great deal more money.

Notice in this example of the new 2019 accident impacting only the shoulder, that the rates must be those for 2019 for both the new award AND the credit. Obviously the new award should command 2019 rates since the new injury occurred in 2019, but the credit also jumps to 2019 rates, unlike the situation noted above for reopeners.

]]>https://njworkerscompblog.com/stacking-injuries-to-multiple-body-parts-resulting-from-the-same-accident-and-the-impact-on-reopeners-and-new-accidents/feed/0Petitioner Failed To Show Her Worsened Disability On Reopener Related Back to Her 1999 Work-Related Motor Vehicle Accident with Sprint PCShttps://njworkerscompblog.com/petitioner-failed-to-show-her-worsened-disability-on-reopener-related-back-to-her-1999-work-related-motor-vehicle-accident-with-sprint-pcs/
https://njworkerscompblog.com/petitioner-failed-to-show-her-worsened-disability-on-reopener-related-back-to-her-1999-work-related-motor-vehicle-accident-with-sprint-pcs/#respondWed, 03 Jul 2019 13:19:31 +0000https://njworkerscompblog.com/?p=2218Reopener petitions abound in New Jersey, but seldom does an injured worker seek on reopener to move an award of 30% permanent partial disability to total and permanent disability benefits. That was the issue in Camarena v. Sprint PCS, A-2205-17T2 (App. Div. June 24, 2019). Ms. Camarena obtained an award of 30% permanent partial disability […]

]]>Reopener petitions abound in New Jersey, but seldom does an injured worker seek on reopener to move an award of 30% permanent partial disability to total and permanent disability benefits. That was the issue in Camarena v. Sprint PCS, A-2205-17T2 (App. Div. June 24, 2019).

Ms. Camarena obtained an award of 30% permanent partial disability in 2003 arising from a work-related motor vehicle accident dating back to 1999. The award was for a bulging disc at C6-7 and disc protrusions at L4-5 and L5-S1. Camarena later reopened the award and sought total and permanent disability benefits with the Second Injury Fund. Capehart and Scatchard partner, Michelle Duffield, argued successfully that petitioner’s subsequent increased disability was not related to the 1999 work accident but to subsequent non-work injuries.

There was no dispute that petitioner’s condition clearly
worsened in the years following the 2003 award.
The dispute centered on what caused the worsening. Petitioner admitted to having a car accident
in July 2002 but claimed that she only injured her knee at that time. Respondent obtained medical records from that
accident and proved that petitioner treated for her neck and back after the
2002 accident.

In 2004 petitioner suffered a serious fall from her knee giving out. She obtained a new cervical MRI, which showed a new herniation in the neck, leading to a discectomy and fusion surgery at C5-6. She fell again in 2007 and reinjured her low back. A new MRI showed an L4-5 disc herniation and an L5-S1 disc herniation. In 2007, she had a revision surgery on her neck. In 2008, she fell again, leading to another cervical MRI. At the time of trial, she needed a health aide 40 hours per week during the day and 12 hours a week at night.

The petitioner’s expert testified that he knew about the
right knee injury from the 2002 car accident, but he was unaware that
petitioner complained about her neck and back from that accident and had a 2004
MRI showing a new disc herniation in her neck.
Respondent’s expert testified that petitioner’s worsening condition
related to the subsequent car accident and subsequent falls from her knee
injury sustained in the 2002 car accident.

The Hon. George H. Gangloff, Jr. dismissed petitioner’s
claim against Sprint PCS and against the Second Injury Fund. Judge Gangloff found that there was a
contradiction between petitioner’s description that she only injured her knee
in the 2002 car accident when compared with the actual medical records
documenting spine complaints. The judge
reviewed the medical records carefully and noted that the petitioner had several
non-work injuries after the 1999 workers’ compensation injury.

Petitioner appealed and argued that she was totally disabled from a worsening of the 30% award entered in 2003. However, the Appellate Division pointed out that petitioner’s own orthopedic expert had mistakenly believed that the 2002 car accident only involved the petitioner’s knee. Nor did the petitioner’s expert know much about the subsequent 2004 fall. The Court held, “The 2002 motor vehicle accident was an independent intervening cause. As a result of that injury in 2004, her knee later gave out causing her to fall and again worsen her injuries – for reasons unrelated to the 1999 incident. The 2002 motor vehicle accident and her numerous falls were clearly intervening independent causes which broke the chain of causation from the 1999 accident to the present.”

This case underscores why it is so important for employers, carriers, third party administrators and self-insured entities to focus on subsequent health records in reopener cases. Even in serious reopener cases, there is sometimes a rush to arrange a reexam in order to reach closure without spending the time and effort on discovery and investigation into interval activities and injuries. In this case, the subsequent investigation saved the employer a great deal of money. Respondents are well advised to order a new ISO and ask on reopener interrogatories about subsequent work and non-work injuries as well as subsequent surgeries. This case points out that the medical records are often more accurate than a petitioner’s recollection of an old injury. While petitioner stressed that the 2002 car accident was a knee injury, — and it primarily was — the records showed treatment to other parts of the body as well.

]]>https://njworkerscompblog.com/petitioner-failed-to-show-her-worsened-disability-on-reopener-related-back-to-her-1999-work-related-motor-vehicle-accident-with-sprint-pcs/feed/0Appellate Division Affirms Decision of Judge of Compensation Finding That The New Jersey Sports and Exposition Authority Did Not Need To Reconstruct Petitioner’s Wage in Award of One Third of Permanent Partial Disabilityhttps://njworkerscompblog.com/appellate-division-affirms-decision-of-judge-of-compensation-finding-that-the-new-jersey-sports-and-exposition-authority-did-not-need-to-reconstruct-petitioners-wage-in-award-of-one-third-of/
https://njworkerscompblog.com/appellate-division-affirms-decision-of-judge-of-compensation-finding-that-the-new-jersey-sports-and-exposition-authority-did-not-need-to-reconstruct-petitioners-wage-in-award-of-one-third-of/#respondThu, 27 Jun 2019 13:23:55 +0000https://njworkerscompblog.com/?p=2215Reconstruction of Wages is an issue in many New Jersey workers’ compensation matters. In a case handled by Capehart Scatchard and successfully argued by Keith Nagy, Esq., the Appellate Division stressed that petitioner has to prove permanent impairment of full-time working capacity arising from a work injury before wages must be reconstructed. The case is […]

]]>Reconstruction of Wages is an issue in many New Jersey workers’ compensation matters. In a case handled by Capehart Scatchard and successfully argued by Keith Nagy, Esq., the Appellate Division stressed that petitioner has to prove permanent impairment of full-time working capacity arising from a work injury before wages must be reconstructed. The case is Lawson v. New Jersey Sports and Exposition Authority, A-4058-17T1 (June 26, 2019).

Petitioner, Ms. Lawson, had two jobs in 2009: one for the
NJSEA as a stadium usher earning about $14 per hour and the other for Wal-Mart
in a full-time position. She broke her
femur at work on the part-time job with the NJSEA I 2009 and had metal rods
inserted into her leg during surgery. She
worked very few hours for NJSEA, so her wage was only $103.36 per week giving
rise to a rate of $72.35 per week for permanency purposes. Because petitioner had a significant injury
consisting of a femur fracture and other leg injuries, the parties ultimately agreed
that the disability was thirty three and one third percent. Where the parties disagreed was on whether to
do wage reconstruction. That issue was
the one that was tried fully.

Without wage reconstruction, the one third award amounted to
$14,469. With wage reconstruction, the
one third award would have amounted to $72,300 because the $14 per hour wage
would be reconstructed on a 40-hour per week basis to $560 with a rate of $392.
So
reconstruction in this case really mattered:
$14,469 versus $72,200. The
difference was $57,531.

Petitioner testified at trial that after her accident on
August 14, 2009, she took medical leave from Wal-Mart until April 2010. When she returned to Wal-Mart, she did so
with medical restrictions limiting her to part-time work. Petitioner refused the company’s offer of
part-time work and was let go. She later
reapplied to Wal-Mart for a full-time position but the company did not rehire
her. After she recovered from her
surgery, she was able to return to her part-time job as a stadium usher for the
NJSEA.

Petitioner collected unemployment from July 2010 to December
2012, certifying that she was ready, willing and able to work. At the time petitioner testified at trial,
she said that she could not do stocking of shelves and so was unable to get a
job in other large stores. She also
testified that she felt she could work full time in a store but only if she did
not have to climb ladders. At the time of her testimony, she was working
part-time at a supermarket. She admitted
to doing a lot of physical work at home, mowing the lawn, cutting wood with a
small electric chainsaw, walking a mile and swimming.

Two experts testified in the case on the issue of
reconstruction of wages. Dr. Tiger for
petitioner said that petitioner could not do full-time work as a consequence of
her injury at NJSEA. However, he did not
know that she was climbing up and down stairs as a stadium usher, and he did
not know that she was swimming, walking a mile and doing some strenuous home
activities.

Dr. Mercurio for respondent testified that petitioner had minimal
residual disability from her injuries.
He felt that she could work full duty without restrictions. He noted that petitioner had a second surgery
in 2014 to remove hardware from her leg and observed that petitioner told
physicians that she was “better than she was before.” When Dr. Tiger examined, the second surgery
had not yet taken place, so he really could not comment on this issue.

The Judge of Compensation found Dr. Mercurio to be the more credible medical witness. The Judge noted that Dr. Tiger was not aware of several key facts in the case that Dr. Mercurio had been aware of. The Judge stated that “petitioner was a very sturdy woman with a high level of physical strength and endurance and energy.” This conclusion was based in part on the many home activities petitioner engaged in. The Judge cited to the leading case on reconstruction of wages, Katsoris v. South Jersey Publishing Company, commenting that petitioner failed to prove that “she lacked potential for full-time employment under the Katsoris decision.”

Petitioner appealed to the Appellate Division and argued that she had not been able to return to full-time employment, which was proof in and of itself that her wages should be reconstructed. The Appellate Division disagreed. The Court said, “petitioner did not prove that her injuries from the 2009 accident diminished her capacity to perform full-time work.” The Appellate Division credited the Judge of Compensation in making appropriate findings in the case.

This is a helpful decision to practitioners because it shows that it is not enough to prove wage reconstruction simply by stating that one has not returned to full-time work. Physical capacity of the worker both in and outside work must be considered. The Judge in this case found that the petitioner could in fact do full-time work based on the physical activities that she engaged in at home, and respondent’s expert made the point that she had no restrictions against doing full duty work.